HKSAR v. HUI RAFAEL JUNIOR, also known as HUI SI-YAN RAFAEL AND OTHERS (23/12/2014, HCCC98/2013) Home | Go to Word | Print | HCCC 98/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 98 OF 2013 ----------------- HKSAR v HUI Rafael Junior also known as HUI Si-yan Rafael (A1) KWOK Ping-kwong, Thomas (A2) CHAN Kui-yuen also known as Thomas CHAN (A4) KWAN Francis Hung-sang also known as KWAN Francis (A5) ----------------- Before: Hon Macrae JA Date: 23 December 2014 at 10.39 am Present: Mr David Perry, QC, Mr Joseph Tse, SC, Ms Maggie Wong and Mr Carter CHIM, Counsel, on fiat, and Ms Winnie Ho, SADPP, for HKSAR Mr Edwin Choy, instructed by Tang, Lai & Leung, for the 1st accused Ms Clare Montgomery, QC, Mr Lawrence Lok, SC and Mr Benson Tsoi, instructed by Boase, Cohen & Collins, for the 2nd accused Mr Ian Winter, QC, Mr Bernard Chung, Mr Issac Chan, and Mr Adrian Wong, instructed by Tsang, Chan & Wong, for the 4th accused Mr Charles J Chan and Mr Billy Kwan, instructed by Simon Ho & Co, for the 5th accused Offence: (1),(6) & (8) Misconduct in Public Office (藉公職作出不當行為) (2), (3), (5) & (7) Conspiracy to commit misconduct in public office (串 http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=96657&currpage=T[07-Feb-2015 13:51:29] HKSAR v. HUI RAFAEL JUNIOR, also known as HUI SI-YAN RAFAEL AND OTHERS (23/12/2014, HCCC98/2013) 謀犯藉公職作出不當行為) (4) Furnishing false information (提供虛假資料) --------------------------------- Transcript of the Audio Recording of the Sentence in the above Case --------------------------------- COURT: I will begin, if I may, by making some observations about this particular case, which I have now lived with as judge since the first application connected with these proceedings was made on 15 July last year. Although preceded by several pre-trial applications, the trial proper started on 8 May 2014, more than seven months ago. The jury of nine heard evidence from more than 80 witnesses. My summing up alone took five days to complete. At one stage there were listed in front of me 21 counsel, five of them from the English Bar, and amongst the 21, no less than eight leading counsel. As one might expect in such circumstances, the proceedings have been difficult, not only in terms of the evidence and the time it has taken, but in the multiplicity of issues which have been engaged and which I have been required to deal with during the trial process. However, in all of that process, nothing has been more difficult than the sentencing of the defendants in front of me today. It is often said that sentencing is an art and not a science. If it were a science, it would no doubt be an easier exercise to conduct. But in truth, sentencing is one of the most difficult functions a judge can perform, particularly when dealing with offences where there are no guidelines beyond various expressions of judicial opinion in other cases dealing with the same offence, but with very different facts. And it is particularly difficult when one is dealing with otherwise decent men, who are not young, but who have committed serious offences. For the two facets of sentencing, the first, which requires a judge to exercise a public duty in dealing effectively and consistently with serious crimes, and the second, which requires him to mitigate the harsh effects of that sentence by acknowledging in an appropriate way the personal circumstances of the individual defendant, are not always an easy balance to achieve. However, our system gives to the judge who has heard the evidence the unique discretion http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=96657&currpage=T[07-Feb-2015 13:51:29] HKSAR v. HUI RAFAEL JUNIOR, also known as HUI SI-YAN RAFAEL AND OTHERS (23/12/2014, HCCC98/2013) to try, in a principled way, to effect that balance, even though the way he exercises that discretion will always provoke those who have not had the advantage of hearing the evidence to say that he has leant too far one way or too far the other. Madam Interpreter, I notice you are not interpreting. I think given the public interest, if you have a script of what I am saying, I think I will ask you to translate paragraph by paragraph from where you are, in Cantonese, so that the court can hear. So perhaps you will start from the beginning. I have been taken to guidelines in the United Kingdom, issued by the Sentencing Council in that jurisdiction, in relation to fraud, bribery, and money-laundering. They are helpful to some extent in identifying the various factors of culpability and harm which may be engaged in corruption offences, but the law of England is different. Their maximum sentences for such offences are different. Their experience of these offences is different. And Hong Kong has long developed its own approach and sentencing jurisprudence to this area of sentencing law. The 1st defendant, Mr Rafael Hui, falls to be dealt with for five offences: count 5, of conspiracy to commit misconduct in public office contrary to common law; count 7, conspiracy to offer an advantage to a public servant contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap 201; and three counts of misconduct in public office contrary to common law, namely counts 1, 6 and 8. The 2nd defendant, Mr Thomas Kwok Ping-kwong has been found guilty of count 5 alone. The 4th defendant, Mr Thomas Chan Kui-yuen, and the 5th defendant, Mr Francis Kwan Hung-sang, fall to be dealt with for the two conspiracies of which they were found guilty, namely counts 5 and 7. All of the defendants are currently in their 60s: Mr Hui, 66; Mr Kwok, 63; Mr Chan, 68; and Mr Kwan, 64. All are of unblemished character, and I accept that going to prison for the first time at this stage of their lives will be a particular hardship for all of them, no doubt exacerbated by the health issues which each of them has. And I wish to make it clear that I have borne in mind their ages when considering the appropriate sentences they must serve, in particular in the significance to be attached to their good characters. I propose to deal with the 2nd defendant first, because in a sense, he is the most straightforward, given that he must be sentenced for one offence only, the maximum sentence prescribed by law being 7 years' imprisonment. http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=96657&currpage=T[07-Feb-2015 13:51:29] HKSAR v. HUI RAFAEL JUNIOR, also known as HUI SI-YAN RAFAEL AND OTHERS (23/12/2014, HCCC98/2013) The first question which I must address is what the starting point should be for a single offence of conspiracy to commit misconduct in public office committed in the circumstances of this particular case. There is a compelling argument that the payment of an $8.5 million bribe by the instigator of the offence to the number 2 in government, made in a deliberately complex and intricate way, through various co conspirators, which then took months, if not years, to uncover and unravel, is an extremely serious example of the offence. It should also be recognised that it is not the function of judges to use their imaginations to conjure up even worse examples of the offence with which they are dealing, but to consider the worst type of offence which comes before the court and ask themselves whether the particular case they are dealing with comes within the broad band of that type. Accordingly, there is a compelling argument that this offence merits a starting point at the maximum of 7 years' imprisonment. I have considered this argument, but I am minded to agree with Ms Montgomery and with Mr Choy and Mr Winter that this is not a case for the adoption of the maximum sentence as a starting point. Serious though it is, given the high degree of trust placed in D1 by the government and people of Hong Kong when he was sworn in as Chief Secretary to the HKSAR government, the case against the 2nd defendant has never been that D1 as Chief Secretary in fact did anything specific or in fact did anything which he would not otherwise have done for the money which he received. The allegation has always been that the defendants conspired together for D1 to misconduct himself by being or remaining favourably disposed to Sun Hung Kai Properties or the other entities set out in the count. I am not so naive as to suppose that just because no specific quid pro quo can be identified, there was not, in view of the sheer size of the payment, thereby created a relationship in which it would have been very easy for useful information about government thinking or policy to be communicated to somebody outside the government. Nevertheless, I am prepared to proceed on the basis that the notion of a public official doing something favourable in return for a payment is at its most attenuated, to paraphrase McMullin J, as he then was, in Attorney-General v Chung Fat Ming (1978) HKLR 480 at page 488, in the context of an allegation of favourable disposition by being "kept sweet". In my view, the appropriate starting point in this case for the instigator of an offence such as count 5, as averred by the prosecution, is one of 6 years' imprisonment.